State Trustees Ltd v Aydin & Ors [2026] VCC 364

1. State Trustees filed the following in support of its application:

(a) Affidavit of Melanie Moran affirmed 10 September 2025;

(b) Affidavit of Gemma Higgins-Dewar affirmed 20 March 2026 as to the genealogical research undertaken by State Trustees.

Background and Mr Aydin's status as the deceased's "step-father"

1. Antonia died intestate on 14 July 2023 at the age of 25. Her mother married Mr Aydin in 2011, and died on 29 March 2022. Antonia had no children or other issue, and was survived by her biological father, Mr Matthew James Longmuir (Mr Longmuir).
2. Apparently Antonia had suffered severe personal injuries at the time of her birth which resulted in a payment to her by the hospital responsible. As set out below, these funds were managed by the Supreme Court Funds in Court and part of the funds were utilised to purchase the Property.
3. State Trustees submit that evidence of parentage, according to the Status of Children Act 1974 (Vic), includes:

Where the name of a parent of a child is entered in the register of births in the Register maintained under the Births, Deaths and Marriages Registration Act 1996 (Vic) in relation to the child a certified copy of the entry purporting to be made or given under section 46 of that Act shall be prima facie evidence that the person named as a parent is a parent of the child.[1]

4. According to the genealogical searches undertaken by State Trustees, Mr Aydin was not recorded in the Births Deaths and Marriages Register as having adopted the deceased.
5. As a result, State Trustees identified that Mr Longmuir, as Antonia's biological father, was the sole beneficiary of the estate on intestacy pursuant to s 70ZH(2) of the Administration and Probate Act 1958 (Vic), which provides as follows:

70ZH Distribution to parents > > ... > > (2) If the intestate leaves one parent but no partner, child or other issue, the parent is entitled to the whole residuary estate.

6. On 5 February 2025, State Trustees was granted letters of administration in respect of the deceased's estate. According to the inventory of assets and liabilities filed at the time of the grant, the estate has a gross value of $2,744,092.04 with no liabilities. The estate's assets include the Property and funds held in Court on the deceased's behalf.
7. The Property was acquired in 2013 using funds belonging to the deceased that were then under the supervision of the Supreme Court of Victoria. A formal declaration of trust was executed, confirming that the Property was held for the sole use and benefit of the deceased. At the time of her death, the deceased resided at the Property with Mr Aydin.
8. On 15 April 2025, following the grant of letters of administration, State Trustees became the registered proprietor of the Property in its capacity as legal personal representative of the estate. State Trustees requires vacant possession of the Property in order to prepare it for sale and to complete the administration and distribution of the estate to the sole beneficiary.
9. The evidence establishes that from January 2025 onwards, State Trustees has made multiple written requests to Mr Aydin asking him to vacate the Property. He has not engaged with any of that correspondence nor has he vacated the Property. He has also not cooperated with State Trustees' attempts to inspect the premises or to engage in discussions regarding vacating arrangements or a potential purchase of the Property.
10. In those circumstances, State Trustees commenced this proceeding on 11 September 2025 seeking recovery of possession of the Property under the summary procedure provided under order 53.

1. Order 53 of the Rules provides a procedure for the summary recovery of land in certain circumstances.
2. The principles governing the application of Order 53 were recently summarised by Harris J in Senior Master of the Supreme Court of Victoria v Elliott:[2]

[31] Rule 53.01 of the Rules provides for the application of O.53: (1) Subject to paragraph (2), this Order applies where State Trustees claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without State Trustees' licence or consent or that of any predecessor in title of State Trustees. ...

[33] Rule 45.04(3) provides that State Trustees in an application under O.53 may apply for judgment on the same day as the date specified in the originating motion.

...

[35] In Framlingham his Honour also summarised, at [41], the principles applicable to an application under O.53, in a passage which has been cited with approval by Tate JA in the Court of Appeal:

(a) It is intended to enable a speedy resolution in favour of the proprietor of land of a dispute whereby trespassers are keeping the proprietor out;

(b) It is intended to apply only in clear cases where there is no question to try;

(c) The existence of a factual dispute does not deny the applicability of Order 53 where it is possible to resolve the dispute readily and fairly.

(d) While an order for possession may be made notwithstanding that there is a factual dispute between the parties, such an order will only be appropriate if the Court is able to satisfy itself as to the material facts that bring the case within O 53;

(e) The jurisdiction should be exercised with great care;

(f) Where an issue does emerge, the judge has discretion to dismiss the proceeding or to determine the issue or cause the issue to be subsequently tried. This includes giving directions as to the further conduct of the proceeding or ordering the proceeding continue as if begun by writ pursuant to r 4.07 of the Rules; and

(g) Where the Court gives judgment for possession under order 53, it may grant a stay of execution.

1. In Chan v Chan,[3] Tate JA discussed the operation of order 53 as follows:

The purpose of proceedings for the summary recovery of land is to protect against trespassers, that is, those who enter land without lawful authority or those who, having had lawful authority to enter land, remain in occupation when the licence or consent to that occupation has been withdrawn. The procedure is only appropriate in a clear case, although it may be available where there is a minor factual dispute providing the dispute can be readily and fairly resolved by the judge.

1. In Tajon Pty Ltd v Arvanitis,[4] AsJ Derham affirmed that summary procedure is not confined to cases of squatters:

... reference to 'trespassers' conjures up images of squatters entering the land and refusing to leave or give up possession to the person with the rightful claim to possession. But in law, a person who remains in occupation of land without the licence or consent of the person immediately entitled to possession is a trespasser as against that person from the time the entitlement arose, once the person has entered onto the land.

1. I do note, that despite the dearth of evidence filed in opposition to the application, I must nonetheless be satisfied that the application is appropriate for summary determination, and that the relief sought is properly made out on the evidence.
2. As the authorities make clear, State Trustees bears the onus of establishing that this is a case appropriate for summary determination under the procedure in order 53. In particular, State Trustees must satisfy the Court:

(a) First, that State Trustees is immediately entitled to possession of the land;

(b) Secondly, that the defendant is in occupation of the Property without lawful basis; and

(c) Thirdly, that the case is sufficiently clear that it may be resolved summarily, without injustice.

1. In relation to the first factor, in the absence of any evidence having been submitted by Mr Aydin, I am satisfied on the evidence that State Trustees is immediately entitled to possession of the Property. The deceased died intestate on 14 July 2023. Letters of administration were granted to State Trustees on 5 February 2025. Upon that grant, State Trustees assumed the rights and obligations of legal personal representative of the estate, including the right to be registered as the proprietor of land, as well as the right to possession and control of it for the purpose of the due administration of the estate.
2. The Property was acquired in 2013 using the deceased's funds while they were under the supervision of the Supreme Court of Victoria, and was held on trust for her sole benefit pursuant to a formal declaration of trust. Following the grant, State Trustees became the registered proprietor of the Property on 15 April 2025 in its capacity as administrator of the estate.
3. Again, in the absence of Mr Aydin having filed any evidence, the Court has before it no evidence of the existence of any competing proprietary or possessory interest, including by Mr Aydin.
4. State Trustees has submitted that it requires vacant possession to enable it to sell the Property and to complete the administration and distribution of the estate in accordance with the laws of intestacy. That is a proper purpose for which a legal personal representative is entitled, and indeed obliged, to take possession of estate property.
5. In relation to the second factor, I am satisfied based on the evidence proffered by State Trustees that Mr Aydin remains in occupation of the Property. I must also be satisfied that there is no lawful basis for that occupation.
6. It may be assumed that, as Antonia's full time carer and widower of her late mother, his occupation of the Property was consensual whilst the deceased was alive. However, there is no evidence of any lease, tenancy, or other ongoing legal or equitable right for Mr Aydin to occupy the Property following the deceased's death. Any lease or licence which could be construed by the conduct of deceased and Mr Aydin before her death was necessarily revocable by State Trustees upon assuming administration and requiring possession.
7. The evidence demonstrates that from at least January 2025, State Trustees has made repeated written requests that Mr Aydin vacate the Property, including correspondence dated 14 January 2025, 24 February 2025, 14 April 2025 and 2 June 2025. He has not done so. As at the date of the hearing of this application, State Trustees submits that Mr Aydin remains in occupation.
8. In those circumstances, Mr Aydin can be properly characterised as a person who, having likely initially occupied with the licence of the registered proprietor, remains in occupation without the licence or consent of the person immediately entitled to possession. As explained in Chan v Chan and Tajon, such a person is a trespasser for the purposes of order 53 once the entitlement to possession has arisen and consent has been withdrawn.
9. In relation to the third factor, I am satisfied that this is a case appropriate for summary determination. State Trustees have undertaken extensive genealogical research as to Mr Aydin's status and any rights which may ensue as "step-father" to the deceased. I do consider this minor factual issue capable of being readily and fairly resolved summarily pursuant to the dicta of the Court of Appeal in Chan v Chan. I am satisfied that no such rights arise having regard to the provisions regarding distribution to "parents" under section 70ZH of the Administration and Probate Act 1958 (Vic), and the definition of parentage under section 8 of the Status of Children Act 1974 (Vic).

1. For the reasons above, State Trustees is entitled to an order for recovery of the Property and delivery of vacant possession together with an order for its costs of this proceeding.
2. Orders in those terms will follow.
3. I will hear State Trustees as to costs.

I certify that these 12 pages are a true copy of the judgment of His Honour Judge Wise delivered on 27 March 2026.

[1] s 8(1).

[2] [2024] VSC 342 (citations omitted).

[3] Chan v Chan [2020] VSCA 40 per Tate JA at [5].

[4] [2017] VSC 130 at [72].